Craig Bernthal’s Web Log: Commentary and Reviews with a Midwest Accent and a Catholic Perspective

Blaise Pascal, Penseé 347: “Man is but a reed, the most feeble thing in nature; but he is a thinking reed. The entire universe need not arm itself to crush him. A vapor, a drop of water suffices to kill him. But, if the universe were to crush him, man would still be more noble than that which killed him, because he knows that he dies and the advantage which the universe has over him; the universe knows nothing of this. All our dignity consists, then, in thought. By it we must elevate ourselves, and not by space and time which we cannot fill. Let us endeavor, then, to think well; this is the principle of morality.”

Wednesday, June 20, 2012

Fr. Robert Barron: Three Videos on the Health and Human Services Contraception Mandate

Father Robert Barron has devoted three videos to addressing the Health and Human Services Mandate that Catholic Hospitals must provide, as part of insurance coverage, various means of contraception:

Father Barron comments on the HHS Contraception Mandate,
January 30, 2012. This is in response to Sibelius first version of contraception regulations.

The HHS Mandate: Anti-Catholic and Un-American, February 13, 2012

Why It's OK to Be Against Heresy: A Reply to Dowd and Sibelius, June 13, 2012

I'm going to use this page to collect opinion and information on this issue, adding as I find something useful.

From the Catholic point of view, this history began as a double-cross from the Obama administration. Catholic bishops had supported the Patient Protection and Affordable Care Act (Obamacare) with the understanding that religious organizations would be exempt from having to provide contraceptive coverage for employees.

When interim regulations were published in the Federal Register on August 3, 2011, the promised exemptions were extremely narrow, applying principally to houses of worship and ministers, but not to religious hospitals, charities or schools.

On January 2012, Secretary of HHS Kathleen Sibelius (who is Catholic), instead of expanding the exemptions, closed them down, saying she would give religious organizations one year to comply with the mandate. This alarmed the Church, and Father Barron, in the first video, above.

David S. Addington succinctly explains the basis for a First Amendment challenge to the policy as originally announced:

The Obamacare statute and implementing regulations command some religious institutions to do what their religion commands them not to do. To take one example, the Catechism of the Roman Catholic Church commands that “human life must be respected and protected absolutely from the moment of conception,” and the papal encyclical on human life that sets forth the Church’s beliefs regarding life prohibits “direct interruption of the generative process already begun,” “sterilization,” and “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation . . . .”

The Obamacare statute’s mandate to a Catholic institution to provide health insurance coverage for its employees that covers contraceptives, abortifacients, and sterilization clashes directly with the Church’s mandate based on religious belief that the institution not do so. The authors of the Bill of Rights foresaw the emergence of such clashes and wisely provided in the First Amendment that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .”

The HHS and the other departments recognized, in the preamble to the interim rules, that “the Departments seek to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions,” and provided a narrow religious exemption. Such an exemption falls far short, however, of the protection the First Amendment contemplates; it covers houses of worship, but not, for example, religious hospitals or charities. See:Obama's Contraception Mandate Tramples on Religious Liberty

Peggy Noonan, in response to the first iteration of the HHS contraception mandate predicted that Obama had awakened a "sleeping giant," i. e., the Catholic Church, and that it would cost him the election: See A Battle the President Can't Win

Obama must have taken the political fallout that Noonan predicted seriously, because shortly after, on February 10, 2012, he announced a compromise:

President Obama Contraception Mandate Statement, February 10, 2012.

Father Barron clearly had reservations about this: see his second video, above.

Here are a few more views. I found the homemade video from Sister Sharon to cut through a lot of fog, and to probably state not only the Catholic position accurately but the emotional commitment as well. She may dismiss the health issue too easily, but I still think she's right: this is mainly about sex and a clash between classic liberal views and Catholic morality. The claim that the mandate is about health is severely undercut by that fact that there is nothing in Catholic moral teaching which prevents the taking of birth control drugs for the non-contraceptive purpose of treating medical problems. (See comments, below, for some back and forth on this point.)

The latest important event in this history occurred two days ago (June 18, 2012), when the Catholic Health Organization, one of President Obama's major political allies in passing Obamacare, declared that it was uncomfortable with the compromise exemptions, since they did not apply to faith-based social service groups. See the Washington Post article, Catholic Health Association says Obama's contraception effort falls short

The foundational issue here is the boundary line between freedom of religion (which like all rights, is not absolute) and state regulation; these boundaries are always contested. To give two extreme examples of the state's right to limit religious practice: If your religion demanded human sacrifice, you would not be entitled to do that under the 1st Amendment. Or, what would be even worse in my neighborhood, if you wanted to hold a revival meeting in the public park at 2 a.m., you couldn't do it. The HHS contraceptive mandate poses a case that is much more interesting than either of those.

14 comments:

The Father totally misses the point. Is the Catholic Church allowed to offer sub-standard care to those they ensure based on their moral position? Contraception is part of standard care, for a number of reasons.

First is that oral contraceptives are part of a standard regimen of treatment in women's health that includes treatment of polycystic ovaries, reducing risk of ovarian cancer, and the reduction of pain and discomfort during the menstrual cycle.

Second is that the position on "religious liberty" that the Father is taking is one often used to advance a failure to meet standard of care requirements by a number of religious organizations, including the Jehovah's Witnesses and various New Age groups who oppose vaccinations. It is important to acknowledge that as an entailment of the position.

What's my point? Well, as the bioethics guy I feel obligated to point out that he's strawmanning the issue. I was the beneficiary of a Catholic education and, as a young Jewish person, have deep misgivings about some of the things that the Church chooses to care about. But I really have no stomach for failing to recognize the issue.

If you believe that the Church is allowed to offer substandard care, then the argument needs to be a justification for that; the argument presented in the videos, while perhaps in part true, is a strawman so long as it neglects that acknowledgement.

I should add, I suppose, that I put the videos up without attaching any of my own comments because I need to know more about this before engaging in argument myself. I will get there, at some point in the future, and your comment will help me to think it through.

Your comment provoked a question I did not know the answer to before today, and it is this: "Is the Catholic Church against the use of contraceptive drugs for non-contraceptive purposes?" For instance, is there anything in Catholic moral law that would prevent a Catholic woman from taking contraceptive drugs for the treatment of cysts or menstrual discomfort? The answer to that question, I found, is "No." Church teaching is against the use of contraceptive drugs only for contraception, but not against using them for other purposes. So, I think you'd have to make the argument that pregnancy itself is a "health issue" which is like an ovarian cyst or menstrual discomfort; but it seems quite different to me, since pregnancy would be the result of healthy bodies engaging in sexual relations. So it is by no means clear to me that the Church is demanding it be allowed to use a substandard degree of medical care in refusing to fund insurance that provides contraceptive drugs for the purpose of contraception. And since contraceptives themselves can have bad effects, the argument gets even tougher to make.

I think in the end, it comes down to a classic showdown between classic liberalism (Locke, Hume, Mill) v. Catholic Church. A familiar collision

The doctrine of double effect is a fascinating thing, it turns out. There are, allegedly, cases where it is permissible in the medical ethics endorsed by the Church to perform an abortion, by means of double effect. These cases are extremely limited, but they do exist. Evidence, I think, that the Catholic Church's positions have some nuance to them.

As an ethicist, I still think the ethical position is mistaken, but the fact that it has some nuance is nice.

I cannot find an instance of a Catholic institution providing birth control for purposes other than contraception. I see it referred to as a "ban" pretty frequently. Anybody know if Catholic health care policies have exceptions?

I don't know how to check out specific institutional practice, so I probably can't find specific evidence one way or another. But Catholic moral teaching says drugs used for birth control can be used for treatments of illnesses--just not for birth control. (I'm not sure what you mean by "providing birth control for purposes other than contraception," but if you mean "birth control drugs for purposes other than contraception," we're on the same page.

Here's a typical exchange on a Catholic apologetics site:

Question: "My doctor said that if I keep having painful periods with heavy bleeding that I may have to take birth control. My understanding is that this is okay as long as it's not being used to contracept. I am celibate and have no relations with anyone. A Catholic friend recently told me however that I will not be able to receive Communion if I am on birth control for any reason whatsoever. Is she right?"

Answer: "The problem here is the term birth control. Your friend is correct that you may not use birth control for any reason whatsoever. That is not however what your doctor is considering having you do. Your doctor is thinking about prescribing for you medication commonly used for birth control purposes, but is being used in your case to treat painful menstrual symptoms. Taking that medication for legitimate non-contraceptive purposes is not sinful, even if that medication has what would be in your case the unintended side effect of rendering you temporarily infertile. Unfortunately, doctors and the public alike have become used to referring to this particular type of medication as birth control, even when the medication is being used for non-contraceptive purposes."

Given that statement of the rule, it seems unlikely that The Catholic Health Association, for instance, which is pretty liberal, would refuse to do what they are allowed to do.

In response to my own post, I would say that the responder to the question, above, doesn't even have it exactly right. The idea that Catholics cannot use "birth control for any reason whatsoever" is going to confuse a lot of people, since Catholics can engage in "Natural Family Planning," which is a very effective way of avoiding pregnancy. For an explanation of this, and statistics, I can't send you to a better site than fellow St. Anthony's parishioner Lisa Hendey's "Catholic Mom."

See http://www.catholicmom.com/nfp.htm

Also, for a secular source, see Science Daily, "Natural Family Planning Method as Effective as Contraceptive Pill, New Research Finds."

First of all, I want to come clean that I don't know the details or the wording of these proposed exceptions to the mandate. I will try to say something about what I understand to be Church teaching, and what I understand that the Church may or may not be able to agree to. It seems that the Church cannot consistently offer its employees drugs with a contraceptive effect for the purpose of contraception, but can consistently offer those same drugs for other, good purposes, viz., to treat diseases for which they are indicated, including at least some of those Josh mentions (keeping prominently in mind that pregnancy is not a disease). So No, the Church would not be forced by its moral guidelines to offer "substandard care," even if it must refuse to offer drugs for the purpose of contraception, consistent with its Christian conscience. Josh, with all due respect, you may be Straw-Manning the Catholic position, or you may not be fully mindful of the ambiguity in the term "contraceptive." As a bioethicist, even if you don't subscribe to it, you must know about the Catholic Doctrine of Double Effect, which emphasizes the role of intention in evaluating moral acts. My comment, and Craig's above, is really based on the DDE, the key point of which is that an act with a "double effect" (in this case, offering a drug that has both a positive and a negative effect) may be permissible in spite of its negative effect (in this case, contraception) so long as that negative effect is not intended, and is not the means to the end of the good, intended effect (in this case, say, treatment of Endometriosis). So the Church may offer "contraceptives" for purposes other than contraception, and thus provide excellent care, consistent with its view that artificial contraception, as such, is an intrinsic evil.Also please note not only what Fr. Barron says in the videos above, but what the Sister Sharon says too: she seems to be pointing to a Red Herring that the Obama administration embeds in the issue from the get-go: what the whole issue is really about. My way of putting it is this: it's the Culture of Death (contraception, sterilization, abortion) vs. the Culture of Life.

First, you assume that the Catholic position on contraception necessarily means "substandard" treatment. In fact, the tendency toward using contraception without giving due considerations to alternatives for conditions other than birth control may be substandard. While Catholicism for providing "substandard treatment,” people with a pro-contraception mentality tend to forget the injury done to women by contraceptives. (See www.consciencelaws.org/issues-ethical/ethical109.html) Bio-ethicist Janet Smith points out:

"Now, let us review some of the bad health effects of contraception on women. One news report tells us:

'Johnson and Johnson spent at least $68.7 million to settle hundreds of lawsuits filed by women who suffer blood clots, heart attacks, or strokes after using the company’s Ortho-evra birth control patch, court records show. Johnson and Johnson, the world’s largest maker of health-care products, avoided trials through confidential settlements and hasn’t released the financial details to investors.31'

About thirty women using the patch died of heart attacks and strokes. They were young, many in their early twenties. These are not the usual causes of death for a woman in her twenties."

Second, Catholicism does not teach that contraceptives are “unclean” or “taboo” eo ipso. It teaches that contraception is a departure from natural law.

It tends to be modernists, who lack the intellect and patience for nuance, who create strawmen consisting of black and white, not the Catholic Church.

Third, consistent with the second point, consistent with if you look at basic church documents on contraception, you see that contraceptives are permitted for reasons other than contraception. Thus, Paul VI in ( See www.vatican.va/holy_father/paul_vi/encyclicals/documents/hf_p-vi_enc_25071968_humanae-vitae_en.html">Humanae Vitae wrote:

"Lawful Therapeutic Means

15. On the other hand, the Church does not consider at all illicit the use of those therapeutic means necessary to cure bodily diseases, even if a foreseeable impediment to procreation should result there from—provided such impediment is not directly intended for any motive whatsoever. (19)"

Fourth, your comparison of Catholicism’s position to the JW position on blood transfusion is accordingly a strawman or begs the question. Insofar as contraception is used to “treat” fertility, it is in no way comparable to using blood transfusions to treat a medical condition. Fertility is not a disease; it is not defective function of the human condition; it is in fact a sign of health. In contrast, blood transfusions are used to treat illness, trauma and disease.

"First, you assume that the Catholic position on contraception necessarily means "substandard" treatment. In fact, the tendency toward using contraception without giving due considerations to alternatives for conditions other than birth control may be substandard. "

You misunderstand my use of "substandard" here. I am talking about a standard of care provided for by the guidelines of the AMA and in the conventional practice of medicine. That is the operant standard, not something general and nebulous. Given that the use of contraception is part of the standard practice, the refusal to offer such services is ipso facto sub-standard.

Are there times when birth control pills are mis-prescribed, insufficiently tested, or errantly marketed? Of course. And those failures fall on the doctor, the FDA and the companies manufacturing the drugs. But they are still entailed by a standard of care. Also, since you offered her as an authority, referring to Janet Smith as a "bioethicist" is misleading. She's a professor of theology who writes on Catholic moral teaching with regard to sexual health. Her [very well known] bias ought to be duly noted in such a discussion, as does her relevance to the debate as a teacher of Catholic moral theology, rather than on "ethics" in the sense that it is understood by those in and around the field.

"Catholicism does not teach that contraceptives are “unclean” or “taboo” eo ipso. It teaches that contraception is a departure from natural law."

Yes. I'm familiar with Humanae Vitae and the other encyclicals on the subject. I never made the claim that you seem to be attributing to me.

"Fourth, your comparison of Catholicism’s position to the JW position on blood transfusion is accordingly a strawman or begs the question. Insofar as contraception is used to “treat” fertility, it is in no way comparable to using blood transfusions to treat a medical condition. "

I must admit, as with your second and third points, that there is something wonderfully and invigoratingly frustrating about this particular strawman. In my post I explicitly note why such contraceptives are included in the standard of care, as part of the treatment for medical conditions including, but not limited to, polycystic ovaries and ovarian cancer.

The right to refuse to insure medical treatments for those conditions is (a) inconsistent with the passage of Humanae Vitae you were kind enough to provide and (b) inconsistent with the standard of care in the contemporary practice of medicine. That was why I used the comparison to Jehovah's Witnesses, because [in this salient sense] it is identical to their position on blood transfusion for a number of purposes... though I think that those familiar with the various doctrines regarding double effect would do well to note that it is in no way a necessary interpretation of the Church's position that they are obligated to refuse to insure medical treatment.

I think it is fair to argue that the positions of the conservative Catholics advocating in these videos, while perhaps the popular positions within the Vatican and the American Catholic clergy, are not representatives of the genuine ethical positions of the various encyclicals dealing with women's health, family planning, and fertility. Frankly, I don't think its very Catholic to hold the sorts of positions on the issue that folks like Fr. Barron and Janet Smith hold. But the chances that they'll listen to a Jewish philosopher on this issue are pretty low.

I don't think your argument about negative health effects works very well (perhaps I lack intellect and the patience for nuance). There are plenty of contraceptives (condoms, IUDs) that don't cause the health risks Ms. Smith describes in your quote. I also don't know of anyone who would want doctors to go around prescribing contraception without considering possible side effects. Sometimes negative side effects will be worth the risk for the patient though, and I don't have a problem with women making that choice for themselves, their religious feelings notwithstanding. If they do decide to use contraceptives, they certainly won't (in most cases) have to use something that comes with a small risk of heart attack, cancer, etc..

I've heard James' argument about the pill being necessary to treat various illnesses quite a few times now. It seems to me that a major factor in whether this is a legitimate criticism of Catholic health care is whether Catholic health care provides the pill as a treatment for those illnesses, and how it does so. And I can't find any information on that. I would very much like to see something that explains how this works.

Luke, the only on-line info I've been able to find on actual practice in providing insurance coverage is from The Cardinal Newman Society Blog. It lists 20 Catholic Colleges that cover contraception, some because they are following the laws of the states in which they reside and some, the article notes, for this reason:

"It’s worth noting as well that many of the colleges on the list provide coverage for certain drugs that have therapeutic purposes apart from their contraceptive effects and are covered only when medically necessary for these other purposes—for conditions such as ovarian cysts, endometriosis, and acne—like the Franciscan University of Steubenville, the University of Dallas and the University of Notre Dame, among others."

The facts seem to be that many Catholic universities give contraceptive coverage because state law requires it; many give such coverage because that is their policy, regardless of state law, and many others provide coverage for contraceptive drugs but only for non-contraceptive treatments, as spelled out by me, Jim, and Peter-Sean. A truly mixed bag of actual practice.